Baby Case Centers On Support

U.s. High Court May Face Ruling

The Florida Supreme Court's ruling in the case of Baby Emily cuts a new path in the area of parental rights, one that may ultimately require a decision by the U.S. Supreme Court to define.

In the ruling handed down on Thursday, the court said Emily's biological father, Gary Bjorklund, of Pompano Beach, abandoned his parental rights by failing to support the mother, Linda Benco, either financially or emotionally before the child was born.

It's the issue of "emotional support" and emotional abuse that sets this case apart.

"This case could have been decided solely on the basis of failing to provide financial support, and there are lots and lots of cases on that," said Jane Rutherford, an associate professor of law and an expert on adoption at DePaul University in Chicago.

"What's interesting about this case is that it tosses in conduct as well, which is what the Florida statute says. There are many fewer cases in which the courts have said the failure of the father to provide emotional support waives parental rights."

The problem now is defining emotional support.

"`Financial support' is much clearer. You can measure it," Rutherford said. "But once you get into the context of a relationship, what is emotionally supportive and emotionally abusive is quite hard to determine."

Gloria Hochman, a spokeswoman for the National Adoption Center in Philadelphia, called the Baby Emily case "a ground-breaking decision," but one that is certain to be challenged.

"The emotional abuse or abandonment question is so difficult to answer even after a child is born. It's very murky," she said. "I'm not sure how well this ruling will hold up."

Two recent high-profile adoption cases - Baby Richard in Illinois and Baby Jessica in Iowa and Michigan - have focused attention on the rights of the biological fathers, and the Baby Emily case tried to do the same.

But in those other cases, the biological fathers weren't aware of the pregnancies. They couldn't be blamed for failing to provide either financial or emotional support to the mothers, experts say.

The question now is whether the case of Baby Emily and the unique legal issues it raises will be decided by the U.S. Supreme Court.

Bjorklund's attorney, Steven Pesso, said he will appeal the case to the high court.

But Nancy Dowd, a professor at the University of Florida who specializes in adoption law, said the U.S. Supreme Court has been reluctant to tackle adoption cases in recent years and seems unlikely to change.

Just as it passed on the cases of Baby Jessica and Baby Richard - both of which were decided in favor of the biological fathers - the court is likely to avoid this case, too, she said.

"Adoption law has been and continues to be a creature of the states," Dowd said. "The inclination is to let it stay that way."

Rutherford, though, thinks this case will be heard.

Some justices, notably Sandra Day O'Connor, have shown an interest in adoption cases and parental rights. And the Florida case raises questions about the definition of emotional support.

"I think they would probably affirm the Florida ruling," Rutherford said. "It's consistent with previous rulings that say parental rights stem from a combination of biology and how the parent behaves.